Express unhappiness over the way Chief Justice Dipak Misra was assigning cases, gave details of their letter to the CJI

Four top Supreme Court judges on Friday stunned the nation by making the rarest public opinion expressing their unhappiness over the way the Chief Justice of India justice Dipak Mishra was assigning cases posing a serious question about the administrative functioning of the highest judicial office.

In an unprecedented press conference where the judges gave details of their letter to the CJI, justice Jasti Chelam-eswar, the most senior judge after CJI, said "This is an extraordinary event and it is with no pleasure we are doing this..we are left with no choice but to address the nation." He was flanked by justices Ranjan Gogoi, Madan B Lokur and Kurien Joseph – all three placed after Chelam-eswar in seniority.

“Administration of the Supreme Court is not in order. Many things less than desirable have happened in the last few months. We owe a responsibility to the institution and the nation. We tried to collectively persuade the Chief Justice that certain things are not in order and remedial measures are necessary.”

The judges had raised their grievances with the CJI two months ago in a seven-page letter that was not responded. The group of top judges met the CJI on Friday morning before hastily calling a press conference after receiving no satisfactory response.

The letter talked about cases with resounding consequences for the nation to be assigned selectively by the CJI based on the preference over rationality.

Though the judges did not make direct reference, a case in the point is that of a public interest litigation seeking a probe into the "mysterious" death of justice B M Loya who was hearing the Shahrabuddin fake encounter case in Maharashtra being assigned to a particular court instead of the first four benches of the SC. "The convention of recognising that CJI is the master of roster and assigns cases to different benches is for disciplined and efficient transaction of court business and not a recognition of superior authority," said the letter adding "the CJI is only the first among equals nothing more and nothing less".

"We collectively tried to persuade the CJI that certain things aren't in order so take remedial measures, but unfortunately our efforts failed," said justice Chelameswar.

The PIL seeking a probe into Justice Loya's death was assigned to court no. 10 instead of the first four benches other than the CJI's court.

The unprecedented development drew sharp reactions from the legal fraternity and the political establishment with the government sources maintaining that it was an internal discord of the apex court.

Political reactions

The sharp division in the judiciary was seen as a major blow to one of the strongest pillars of democracy. BJP MP Subramanian Swamy described the four judges as "men of great integrity" who sacrificed a lot of their legal career and said that the PM must ensure that the four judges and the CJI come to one opinion.

Congress president Rahul Gandhi, who went into a huddle with top party leaders, said it was a matter of grave concern. "All citizens, who love the idea of justice, are looking at this issue, it needs to be addressed. Points raised by the honourable judges need to be looked into carefully. Even justice Loya's death needs to be investigated properly," said Rahul Gandhi.

‘Immature,’ say some legal luminaries

Justice R S Sodhi lashed out at the judges saying they acted in an immature and childish manner. "Issues don’t matter. It is their complaint on administrative matter. They are only four, there are 23 others, four get together and show the Chief Justice in a poor light," he said adding that they should be impeached.

"I am sure they exhausted all other possible remedies. One could see the pain on their faces when they were speaking. The question is of natural justice. Judge must always be above suspicion, like Ceaser's wife," said K T S Tulsi, senior advocate.

The case pertaining to the death of justice Loya seem to have become the tipping point of rebellion in the apex court. A bench of justices Arun Mishra and M M Shantanagoudar, who directed the Maharashtra government to file reply by January 15, took a petition filed by the Maharashtra-based journalist B R Lone seeking a fair probe into the death of Loya.

In their letter highlighting their grievances, the judges referred to the case of R P Luthra Vs Union of India pertaining to the appointments to the higher judiciary and the Memorandum of Procedure for doing so.

The dissidence had been brewing in the Supreme Co­urt since more than two months. Justice Chelame­sw­ar's bench had ordered setting up of a five judge Consitutional Bench to hear a matter related to corruption in the judiciary on a petition by the Centre for Judicial Accountability and Reforms. But Chief Justice Misra set up a separate five-judge bench overturning justice Chelameswar's order.

'The CJI is only the first amongst the equals – nothing more or nothing less'

Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivering system and the independence of the high courts besides impacting the administrative functioning of the Office of the Hon’ble Chief Justice of India.

From the date of establishment of the three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this court which came into existence almost a century after the above mentioned courts. These traditions have their roots in the anglo saxon jurisprudence and practice.

One of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi numbered courts for as orderly transaction of business and appropriate arran­gements with respect to matters with which me­mb­er/bench of this court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals – nothing more or nothing less. In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above mentioned principle is the members of any multi numbered judicial body including this court would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition wise and strength wise with due regard to the roster fixed.

Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.

We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where cases having far-reaching consequences for the nation and the institution have been assigned by the Chief Justices of this co­urt selectively to the benches “of their preference” without any rationale basis for such as­signment. This must be gu­ar­ded against at all costs. We are not mentioning details on­ly to avoid embarrassing the institution but note that such departures have al­r­e­ady damaged the image of this institution to some extent.

In the above context, we deem it proper to address you presently with regard to the order dated 27th October, 2017 in R.P.Luthra vs. Union of India to the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this court in Supreme Court Advocates-on-Record Association and Anr Vs. Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the collegium of five judges (including myself) and the Memorandum of Procedure was finalised and sent by the then Hon'ble Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalised by the Collegium has been accepted by the Government of India on the basis of the order of this court in Supreme Court Advocates-on-record Association (Supra). There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the MoP or that issue cannot linger on for an indefinite period.

On 4th July, 2017, a bench of seven Judges of this court decided In Re. Hon’ble Shri Justice C S Karman [(2017) 1 SCC1]. In that decision (referred to in R P Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the full court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.

The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full

discussion with the other members of the Collegium and at a later stage, if required, with other Hon’ble Judges of this court.

Once the issue arising from the order dated 27th October, 2017 in R P Luthra Vs. Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.
With kind regards,